Litigation: Reconsidering the preliminary injunction

Normally, only final judgments can be appealed. In the case of preliminary injunctions, however, because they are granted at the outset of litigation and can remain in effect for months or even years even if granted in error, a litigant is allowed to file an interlocutory appeal of a preliminary injunction. The exact procedure of filing such an appeal will vary from jurisdiction to jurisdiction, and failure to file a timely appeal may cause that appeal’s failure. Even in cases where an appeal is not possible, it still may be possible to modify or dissolve the injunction.

When appealing temporary restraining orders (TRO), however, the situation is more complex. While all states and the federal court system allow preliminary injunctions to be appealed before final judgment, the same is not true of TROs. While some states do allow for an appeal of the granting or denial of either the TRO itself, or the modification/dissolution of that order, some states do not, and federal courts will likely hear this type of appeal at their discretion. One situation where an appeal of a TRO will likely be heard is when the TRO has extended past statutory limits. In those cases, it is not uncommon for courts to consider the extended TRO to be a preliminary injunction for the purposes of the appeal. Exactly how long a TRO must last before a higher court would hear the appeal will depend on the specific jurisdiction, however.

TROs

In the case of TROs, where an appeal can be uncertain at best, the most effective course of action might be to file for a modification or dissolution of the order. There are a number of reasons for moving for the dissolution of a TRO. One common reason for dissolving a TRO is that in granting the order, the court failed to abide by the four-factor test for granting the TRO in the first place. For example, if there was no way of showing that irreparable harm would have resulted from not granting a TRO, then there may be grounds for having that TRO dissolved.

Other common reasons for dissolving a TRO include that notice for the TRO could have been provided but was not, that the TRO lasts too long, and that the hearing for a preliminary injunction, which must be set at the same time the TRO is granted, has been adjourned, and the moving party has not proceeded with their motion for a preliminary injunction. If the only objectionable aspect of the TRO is technical errors on the face of the order, or that the court is not absolutely certain that the movant has the right he claims, however, then there likely will not be adequate grounds to dissolve the order.

Preliminary Injunctions

The majority of state courts, as well as federal courts, allow the issuance or denial of a preliminary injunction to be appealed before a final judgment is made. The standard of review used by most courts, including the federal court system, is an “abuse of discretion” standard. Typically, an injunction will be overturned on appeal only if there has been a misapplication of substantive law or the four-factor preliminary injunction standard, the injunction was based on a clearly erroneous finding of material fact or the four-factor test was applied in such a way that it resulted in an abuse of discretion.

In certain jurisdictions, it may be possible to hold off on the appeal of the preliminary injunction until after the final judgment has been entered. By not filing an appeal until then, however, the respondent bears the burden of complying with the injunction for months or years, and, as the result of developments in the case, may find his appeal moot.

It is also possible to move for a modification or dissolution of a preliminary injunction if the four-factor test for granting the injunction in the first place was not met. There may also be new evidence or changes in the law since the order’s granting that may persuade the court to modify or vacate the order. If this motion fails, however, it may be possible to appeal the denial of that motion.

The granting or denial of a preliminary injunction or a TRO does not necessarily end the story. As has been shown, even after the order is entered, there are a variety of tactical and strategic decisions that will need to be made in terms of whether the order will be appealed or whether a motion for modification or dissolution of the order will be filed. Complicating matters further, what recourse is available can vary greatly depending on whether one is in state court or federal court, and what state or circuit the court belongs to. An experienced commercial litigator can be essential when navigating this maze of procedure.

Contributing Author

Thomas Patterson

Thomas E. Patterson started the Patterson Law Firm in 2000. He has 32 years of experience preparing and trying lawsuits for businesses, professionals and entrepreneurs—often...